1 2 3 6 7 JEREMY DANIELS, Case No. 21-cv-03794-RMI
8 Plaintiff, ORDER LIFTING STAY, REOPENING 9 v. CASE, AND DIRECTING SERVICE
10 STEVEN APONTE, et al., Re: Dkt. No. 19 Defendants. 11
12 13 Plaintiff, a former detainee proceeding pro se, filed a civil rights complaint under 42 14 U.S.C. § 1983, alleging that police officer used excessive force during his unlawful arrest. The 15 court stayed the case pursuant to Wallace v. Kato, 549 U.S. 384, 393 (2007), until Plaintiff’s 16 criminal case arising from the events alleged in the complaint ended. Plaintiff has filed a motion to 17 reopen the case and to serve Defendants. 19 Federal courts must engage in a preliminary screening of cases in which prisoners seek 20 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 21 1915A(a). In its review, the court must identify any cognizable claims, and dismiss any claims 22 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 23 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 24 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 25 Cir. 1990). 26 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 27 claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the 1 which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). Although a 2 complaint “does not need detailed factual allegations” in order to state a claim, “a plaintiff’s 3 obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and 4 conclusions, and a formulaic recitation of the elements of a cause of action will not do . . . 5 [f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell 6 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must 7 proffer “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. The United 8 States Supreme Court has explained the “plausible on its face” standard of Twombly as follows: 9 “[w]hile legal conclusions can provide the framework of a complaint, they must be supported by 10 factual allegations . . . [and] [w]hen there are well-pleaded factual allegations, a court should 11 assume their veracity and then determine whether they plausibly give rise to an entitlement to 12 relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 13 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) 14 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 15 alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 16 487 U.S. 42, 48 (1988). 18 Plaintiff alleges that he was improperly arrested due to racial profiling and subject to 19 excessive force. An allegation of the use of excessive force by a law enforcement officer in 20 effectuating an arrest states a valid claim under 42 U.S.C. § 1983. See Rutherford v. City of 21 Berkeley, 780 F.2d 1444, 1447 (9th Cir. 1986), overruled on other grounds by Graham v. Connor, 22 490 U.S. 386 (1989); see also Byrd v. Phoenix Police Dep’t, 885 F.3d 639, 641-42 (9th Cir. 2018) 23 (pro se allegations that police officers “beat the crap out of” plaintiff and caused him severe injury 24 enough to support a legally cognizable claim under § 1983). Excessive force claims which arise in 25 the context of an arrest or investigatory stop of a free citizen are analyzed under the Fourth 26 Amendment reasonableness standard. See Graham, 490 U.S. at 394-95. 27 A claim of unlawful arrest is cognizable under § 1983 for violation of the Fourth 1 the arrest was without probable cause or other justification. See Pierson v. Ray, 386 U.S. 547, 555- 2 558 (1967); Yousefian v. City of Glendale, 779 F.3d 1010, 1014 n.1. (9th Cir. 2015) (absence of 3 probable cause is essential element of a § 1983 false arrest claim). Further, a claim of unlawful 4 detention or imprisonment is cognizable under § 1983 for violation of the Fourteenth 5 Amendment’s guarantee of due process if the arrest was without probable cause or other 6 justification and the defendant knew or should have known that plaintiff was entitled to release. 7 See Baker v. McCollan, 443 U.S. 137, 142-145 (1979); Lee v. Cty. of Los Angeles, 250 F.3d 668, 8 684-85 (9th Cir. 2001) (plaintiff stated due process claim where police allegedly arrested 9 plaintiff’s son without probable cause, detained him without verifying that he was the person for 10 whom police had an arrest warrant, despite his obvious mental incapacity, and detained him for 11 one day before an extradition hearing, which led to his incarceration in another state for two 12 years); cf. Gant v. Cty. of Los Angeles, 772 F.3d 608, 619, 621-22 (9th Cir. 2014) (because 13 plaintiff did not inform defendants of his mistaken identity and because he received a prompt 14 hearing, his due process claim based on unlawful post-arrest detention failed). 15 Plaintiff states that he was riding his bicycle down the street when the Defendant police 16 officers racially profiled him and pulled alongside of him in a patrol car and told him to stop. 17 Plaintiff did not stop, because he did nothing wrong, and kept riding. Plaintiff states that 18 Defendant Officer Aponte struck Plaintiff with his patrol car causing an accident and injuries. 19 Defendant Officer Cristancho then knocked Plaintiff down and got on top of Plaintiff pressing his 20 knees into Plaintiff further injuring him. 21 Plaintiff states that the criminal prosecution ended and he was convicted of 18 U.S.C. § 22 922(g), being a felon in possession of a firearm. Liberally construed for purposes of screening, 23 Plaintiff states a claims against these Defendants for unlawful arrest and excessive force.1 24 Plaintiff has also filed a motion to appoint counsel. There is no constitutional right to 25 counsel in a civil case, Lassiter v. Dep’t of Social Services, 452 U.S. 18, 25 (1981), and although 26
27 1 While one or both of these claims may be barred by Heck v.
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1 2 3 6 7 JEREMY DANIELS, Case No. 21-cv-03794-RMI
8 Plaintiff, ORDER LIFTING STAY, REOPENING 9 v. CASE, AND DIRECTING SERVICE
10 STEVEN APONTE, et al., Re: Dkt. No. 19 Defendants. 11
12 13 Plaintiff, a former detainee proceeding pro se, filed a civil rights complaint under 42 14 U.S.C. § 1983, alleging that police officer used excessive force during his unlawful arrest. The 15 court stayed the case pursuant to Wallace v. Kato, 549 U.S. 384, 393 (2007), until Plaintiff’s 16 criminal case arising from the events alleged in the complaint ended. Plaintiff has filed a motion to 17 reopen the case and to serve Defendants. 19 Federal courts must engage in a preliminary screening of cases in which prisoners seek 20 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 21 1915A(a). In its review, the court must identify any cognizable claims, and dismiss any claims 22 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 23 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 24 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 25 Cir. 1990). 26 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 27 claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the 1 which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). Although a 2 complaint “does not need detailed factual allegations” in order to state a claim, “a plaintiff’s 3 obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and 4 conclusions, and a formulaic recitation of the elements of a cause of action will not do . . . 5 [f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell 6 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must 7 proffer “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. The United 8 States Supreme Court has explained the “plausible on its face” standard of Twombly as follows: 9 “[w]hile legal conclusions can provide the framework of a complaint, they must be supported by 10 factual allegations . . . [and] [w]hen there are well-pleaded factual allegations, a court should 11 assume their veracity and then determine whether they plausibly give rise to an entitlement to 12 relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 13 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) 14 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 15 alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 16 487 U.S. 42, 48 (1988). 18 Plaintiff alleges that he was improperly arrested due to racial profiling and subject to 19 excessive force. An allegation of the use of excessive force by a law enforcement officer in 20 effectuating an arrest states a valid claim under 42 U.S.C. § 1983. See Rutherford v. City of 21 Berkeley, 780 F.2d 1444, 1447 (9th Cir. 1986), overruled on other grounds by Graham v. Connor, 22 490 U.S. 386 (1989); see also Byrd v. Phoenix Police Dep’t, 885 F.3d 639, 641-42 (9th Cir. 2018) 23 (pro se allegations that police officers “beat the crap out of” plaintiff and caused him severe injury 24 enough to support a legally cognizable claim under § 1983). Excessive force claims which arise in 25 the context of an arrest or investigatory stop of a free citizen are analyzed under the Fourth 26 Amendment reasonableness standard. See Graham, 490 U.S. at 394-95. 27 A claim of unlawful arrest is cognizable under § 1983 for violation of the Fourth 1 the arrest was without probable cause or other justification. See Pierson v. Ray, 386 U.S. 547, 555- 2 558 (1967); Yousefian v. City of Glendale, 779 F.3d 1010, 1014 n.1. (9th Cir. 2015) (absence of 3 probable cause is essential element of a § 1983 false arrest claim). Further, a claim of unlawful 4 detention or imprisonment is cognizable under § 1983 for violation of the Fourteenth 5 Amendment’s guarantee of due process if the arrest was without probable cause or other 6 justification and the defendant knew or should have known that plaintiff was entitled to release. 7 See Baker v. McCollan, 443 U.S. 137, 142-145 (1979); Lee v. Cty. of Los Angeles, 250 F.3d 668, 8 684-85 (9th Cir. 2001) (plaintiff stated due process claim where police allegedly arrested 9 plaintiff’s son without probable cause, detained him without verifying that he was the person for 10 whom police had an arrest warrant, despite his obvious mental incapacity, and detained him for 11 one day before an extradition hearing, which led to his incarceration in another state for two 12 years); cf. Gant v. Cty. of Los Angeles, 772 F.3d 608, 619, 621-22 (9th Cir. 2014) (because 13 plaintiff did not inform defendants of his mistaken identity and because he received a prompt 14 hearing, his due process claim based on unlawful post-arrest detention failed). 15 Plaintiff states that he was riding his bicycle down the street when the Defendant police 16 officers racially profiled him and pulled alongside of him in a patrol car and told him to stop. 17 Plaintiff did not stop, because he did nothing wrong, and kept riding. Plaintiff states that 18 Defendant Officer Aponte struck Plaintiff with his patrol car causing an accident and injuries. 19 Defendant Officer Cristancho then knocked Plaintiff down and got on top of Plaintiff pressing his 20 knees into Plaintiff further injuring him. 21 Plaintiff states that the criminal prosecution ended and he was convicted of 18 U.S.C. § 22 922(g), being a felon in possession of a firearm. Liberally construed for purposes of screening, 23 Plaintiff states a claims against these Defendants for unlawful arrest and excessive force.1 24 Plaintiff has also filed a motion to appoint counsel. There is no constitutional right to 25 counsel in a civil case, Lassiter v. Dep’t of Social Services, 452 U.S. 18, 25 (1981), and although 26
27 1 While one or both of these claims may be barred by Heck v. Humphrey, 512 U.S. 477, 486-87 1 district courts may “request” that counsel represent a litigant who is proceeding in forma pauperis, 2 as Plaintiff is here, see 28 U.S.C. § 1915(e)(1), that does not give the courts the power to make 3 “coercive appointments of counsel.” Mallard v. United States Dist. Court, 490 U.S. 296, 310 4 (1989). 5 The Ninth Circuit has held that a district court may ask counsel to represent an indigent 6 litigant only in “exceptional circumstances,” the determination of which requires an evaluation of 7 both (1) the likelihood of success on the merits and (2) the ability of the plaintiff to articulate his 8 claims pro se in light of the complexity of the legal issues involved. Terrell v. Brewer, 935 F.2d 9 1015, 1017 (9th Cir. 1991). Plaintiff has presented his claims adequately, and the issues are not 10 complex. It is too early for the court to determine the likelihood of success on the merits; 11 therefore, the motion to appoint counsel is denied without prejudice and Plaintiff may refile the 12 motion at a later date. 14 The motion to appoint counsel (dkt. 19) is DENIED without prejudice and the motion to 15 reopen (dkt. 19) is GRANTED and the stay is lifted, and this case is REOPENED. The court 16 orders service on Defendants through the United States Marshal as follows: 17 The Clerk will issue a summons and the United States Marshal will serve, without 18 prepayment of fees, copies of the amended complaint (dkt. 14) with attachments, copies of this 19 order and the notice of assignment of prisoner case to a United States magistrate judge and 20 accompanying magistrate judge jurisdiction consent or declination on San Jose Police Officers 21 Steven Aponte and Alexander F. Cristancho. The Clerk is also requested to serve a copy of this 22 order on Plaintiff. 23 In order to expedite the resolution of this case, the court orders as follows: 24 Within twenty-eight days of service, Defendants shall file a magistrate judge 25 jurisdictional consent or declination of consent form. No later than sixty days from the date of 26 service, Defendants shall file their motion for summary judgment or other dispositive motion. The 27 motion shall be supported by adequate factual documentation and shall conform in all respects to 1 stemming from the events at issue. If Defendants are of the opinion that this case cannot be 2 resolved by such a motion, they shall so inform the court prior to the date that such motion is due. 3 Moreover, all papers filed with the court shall be promptly served on Plaintiff. 4 At the time the dispositive motion is served, Defendants shall also serve, on a separate 5 paper, the appropriate notice or notices required by Rand v. Rowland, 154 F.3d 952, 953-954 (9th 6 Cir. 1998) (en banc), and Wyatt v. Terhune, 315 F.3d 1108, 1120 n.4 (9th Cir. 2003); see Woods v. 7 Carey, 684 F.3d 934, 940-941 (9th Cir. 2012) (finding that Rand and Wyatt notices must be given 8 at the time motions for summary judgment or motion to dismiss for non-exhaustion are filed, not 9 earlier); Rand, 154 F.3d at 960 (establishing the separate paper requirement). 10 Plaintiff’s opposition to the dispositive motion, if any, shall be filed with the court and 11 served upon Defendants no later than thirty days from the date the motion is served upon him. 12 Additionally, Plaintiff must read the attached page headed “NOTICE – WARNING,” which is 13 provided to him pursuant to Rand, 154 F.3d at 953-954, and Klingele v. Eikenberry, 849 F.2d 409, 14 411-12 (9th Cir. 1988). 15 If Defendants file a motion for summary judgment claiming that Plaintiff failed to exhaust 16 his available administrative remedies as required by 42 U.S.C. § 1997e(a), Plaintiff should take 17 note of the attached page headed “NOTICE – WARNING (EXHAUSTION),” which is provided 18 to him as required by Wyatt, 315 F.3d at 1120 n.4. 19 If Defendants wish to file a reply brief, they shall do so no later than fifteen days after the 20 opposition is served. The motion shall be deemed submitted as of the date the reply brief is due. 21 No hearing will be held on the motion unless the court so orders at a later date. All 22 communications by Plaintiff with the court must be served on Defendants, or Defendants’ counsel, 23 if and when counsel has been designated, by mailing a true copy of the document to Defendants or 24 Defendants’ counsel. 25 Discovery may be taken in accordance with the Federal Rules of Civil Procedure. No 26 further court order is required before the parties may conduct discovery. 27 Finally, it is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the court 1 Change of Address.” He also must comply with the court’s orders in a timely fashion. Failure to 2 || do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of 3 Civil Procedure 41(b). 5 || Dated: July 17, 2025 6 7 ROBERT M. ILLMAN 8 United States Magistrate Judge 9 10 11 12
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2 If defendants move for summary judgment, they are seeking to have your case dismissed. 3 A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if 4 granted, end your case. 5 Rule 56 tells you what you must do in order to oppose a motion for summary judgment. 6 Generally, summary judgment must be granted when there is no genuine issue of material fact-- 7 that is, if there is no real dispute about any fact that would affect the result of your case, the party 8 who asked for summary judgment is entitled to judgment as a matter of law, which will end your 9 case. When a party you are suing makes a motion for summary judgment that is properly 10 supported by declarations (or other sworn testimony), you cannot simply rely on what your 11 complaint says. Instead, you must set out specific facts in declarations, depositions, answers to 12 interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts 13 shown in the defendant’s declarations and documents and show that there is a genuine issue of 14 material fact for trial. If you do not submit your own evidence in opposition, summary judgment, 15 if appropriate, may be entered against you. If summary judgment is granted, your case will be 16 dismissed and there will be no trial. 18 If defendants file a motion for summary judgment for failure to exhaust, they are seeking 19 to have your case dismissed. If the motion is granted it will end your case. You have the right to 20 present any evidence you may have which tends to show that you did exhaust your administrative 21 remedies. Such evidence may be in the form of declarations (statements signed under penalty of 22 perjury) or authenticated documents, that is, documents accompanied by a declaration showing 23 where they came from and why they are authentic, or other sworn papers, such as answers to 24 interrogatories or depositions. If defendants file a motion for summary judgment for failure to 25 exhaust and it is granted, your case will be dismissed and there will be no trial.
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